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Yesterday morning, in a speech to civic organisations in Glasgow, First Minister Nicola Sturgeon warned that “no responsible government” would consider repeal of the Human Rights Act 1998 due to the numerous negative consequences, both in the domestic and international sphere, that would result from such a move – (see a transcript of the speech here).

by Fraser Simpson

Proposals for Repeal of the Human Rights Act

It has been a longstanding Tory policy to repeal the Human Rights Act and replace it with a British Bill of Rights. Such a policy is motivated by discontent over a handful of decisions from the European Court of Human Rights (“ECtHR”) that have allegedly “undermine[d] the role of UK courts in deciding on human rights issues”. In October 2014, the then Justice Secretary Chris Grayling announced Tory proposals to treat Strasbourg judgments as “advisory” – irrespective of the potential incoherence between treating judgments in such a way and the UK’s obligations under Article 46, ECHR (see John Wadham’s post here). However, the 2015 Tory manifesto included less specific promises to “scrap the Human Rights Act” in order to “break the formal link between British courts and the European Court of Human Rights”. Little substantive information has been provided on the development of these plans, apart from an intention, included in the Queen’s speech, to conduct consultations and publish proposals this autumn.

Scottish Opposition

However, north of the border there appears little support for such proposals. In the latest stand against repeal, the First Minister Nicola Sturgeon has addressed a group of civic organisations in Glasgow and outlined the potential negative consequences of such repeal as well as the Scottish Government’s approach to the proposals.

Speaking alongside Liberty’s Director Shami Chakrabati, Sturgeon highlights the fact that there appears little information on what a British Bill of Rights would contain. The First Minister believes that, if anything, the UK Government will weaken protection for individuals. She stated that weakened human rights protection will:

“diminish the UK’s reputation overseas, damage relations with devolved governments, and impact on the welfare of people within the UK.”

In considering these potential impacts, the First Minister may be justified in some of her concerns…

The UK’s International Reputation

Mere proposals for repeal of the Human Rights Act have already been used as an unfortunate precedent in the international sphere. In October 2014, shortly after Chris Grayling released the Tory proposals, Kenyan President Uhuru Kenyatta referred to these proposals in a speech criticising the International Criminal Court (see Adam Wagner’s post here). Kenyatta, currently facing war crimes charges relating to post-election violence in which 1,200 were left dead, stated:

“The push to defend sovereignty is not unique to Kenya or Africa. Very recently, the Prime Minister of the United Kingdom committed to reasserting the sovereign primacy of his parliament over the decision of the European Human Rights Court. He has even threatened to quit that court”

Dominic Grieve highlighted, in a recent lecture in Edinburgh, that the UK position was also used as a justification by Venezuela in refusing to comply with the American Convention on Human Rights before they ultimately denounced it in 2013 (the full lecture is available here). The Former Attorney General, an opponent to proposals to repeal the Human Rights Act, said that any repeal would be seen as “an example and an invitation for [the ECHR] to be ignored by others”. Additionally, survivors of the Beslan massacre raised worries over the message that UK withdrawal from the ECHR (a potential result depending on the form of any British Bill of Rights) could send to Putin about the role of the ECtHR (see Alice Donald’s post here). Failing to consider the potential international consequences of any repeal would be incredibly isolationist.

The Devolved Governments

Interestingly, the First Minister also highlighted the potential negative impact that repeal could have on the relationship between Westminster and devolved governments. In June this year she made a joint statement with Welsh First Minister Carwyn Jones clearly outlining their position:

“The UK Government’s proposal to repeal the Human Rights Act sends out a message to the world that the UK is not a place that prioritises and respects international standards in human rights… Both our governments are fundamentally opposed to this regressive move and will do everything we can to resist it.”

As a result of the Sewel Convention, as covered in David Scott’s post here, the repeal of the Human Rights Act would likely require the consent of the Scottish Parliament. There is, however, the potential that a Bill of Rights could be introduced that would only change the status quo in England and Wales; thus bypassing the need for Holyrood consent. In response to this, Sturgeon stated yesterday that she would not support the dilution of human rights anywhere in the UK. The weakening of human rights protections within any part of the UK would be opposed by the Scottish Government. Indeed, the aim of the Scottish Government was actually to further human rights protection. Scotland’s National Action Plan, launched in 2013, advocates an embedding of human rights concerns within domestic policy making processes. The First Minister was keen to emphasise that whilst the UK Government was considering proposals to curb human rights, the Scottish Government was aiming to do the complete opposite.

Independence Referendum II?

As mentioned above, the legal implications of repeal of the Human Rights Act depend heavily on the form of future proposals. But the subsequent political fallout following repeal is much more certain. There is, however, the potential that unilateral repeal by the UK Government could result in a “break up” instead of a mere “falling out”. The First Minister has previously stated her intention to include within the SNP’s 2015 Holyrood election manifesto the conditions in which a second independence referendum would be held. A decision to leave the EU, if not supported by a majority of Scottish voters, has long been a ground for the holding of a second referendum. Additionally, grounds such as renewal of Trident, “austerity to the max”, and involvement of the UK in an “illegal war” have also been suggested as grounds for a re-vote by Alex Salmond. Is there the potential that the SNP could consider repeal of the Human Rights Act as a trigger for another independence referendum?

It remains to be seen what form the proposals relating to repeal of the Human Rights Act will take. However, the First Minister is clear that whatever form they take, and whatever jurisdiction they cover, the Scottish Government will oppose them. If repeal is successful then political relationships between Holyrood and Westminster will be inevitably damaged. Whether this damage is significant enough to justify a second referendum, however, remains to be seen.

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Disclaimer: This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.